Writer Contract Primer

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writing, contracts

See my guest post up over at Cathy Miller’s blog.

As promised, this starts the new blog themed posts as I try to bring you more targeted information. For the duration of November, we’ll talk about contracts, rates, and payment.

Today, let’s review the contract.

Recently I had a chance to put my contracts to the test. It hadn’t happened in a long while, but a client was dangerously close to litigation. In fact, I was one step away from signing with a collection agency. But since circumstances seemed very odd (he’d asked for the invoice but had never paid it), I gave the client one last try. The invoice is now paid.

Yet imagine if there hadn’t been a contract in place. What would have become of my requests? Since much of my work is in email, there’s always a written record somewhere of the project and the client agreeing to the terms (I make sure to ask for that –“To repeat, you’d like 2K words on the importance of business liability insurance, and the fee is $2,000. Please confirm so I can get started.”). But it’s important to get a contract on nearly every project you touch (I say “nearly every” because it’s pretty common to work without a contract for magazine editors with whom you’ve built a relationship).

What goes into it? In my opinion, these items are musts:

Payment terms. You’d be surprised how many people overlook this one. It’s not simply putting a figure down. You need to spell out how you expect that client to pay you – weekly, monthly, in installments, etc. Make sure this is done prior to signing the contract. If you’re ghostwriting a book, this is especially important, for you don’t want that last payment to be “upon delivery of final product.” I’ve had projects that have gone on for years. Put an end date to that last payment. 

Revision timeline. Build it in at the outset. The client has a deadline, but it’s not all on you to meet it. They have to meet their own in order to keep the workflow going. Try a clause that explains that the client has 14 days from delivery (or 30 days if it’s a huge document) to get back to you with changes. 

Project expectations. This is where you’ll repeat back to the client the parameters of the agreement. You’ll do X, Y and Z for the client. Why this is important — it keeps the client from throwing A, B, and C onto the pile, protecting you from doing double (or worse) the expected amount of work for that one fee.

Client responsibilities. There may not be a specific section for it, but your contract should spell out what’s expected of the client, as well. If they’re to supply you with research, experts, or original content, say so in your agreement. If there’s an ongoing project, spell out all time lines and deadlines. 

No third party clause. I call it the “no posse” clause, and I make sure this is in every agreement — it states who has input and authority over the content, and what happens should an unnamed person become involved. For example, you’re working with Fred on his autobiography, when at the very end, someone named Jeff starts sending his edits and expects you to revise heavily what you and Fred have already done. That’s third party input, and the contract is now void and payment due immediately. If you want to continue working with Fred, who’s insisting on Jeff’s input, work up a new contract including your fee for implementing Jeff’s suggestions. Sometimes clients realize their mistake when they see how much it will cost.

Whenever I use this clause (always) I point it out to my clients in my email to them, and I make sure that section is either highlighted or in bold. I do ask them if there are other parties (besides spouses) who might want to review the work. That way you can include them in the contract and adjust the rate to compensate.

Additional work will be negotiated under a separate agreement. This does a few things – it forces the client to examine exactly how much work is needed at the outset. Also, it guarantees that the work you’re about to sign on for isn’t going to snowball into massive amounts of work that you’ve bid only a pittance for. If your agreement is to write two articles, write two. Don’t take on a third under the same agreement, for that turns into six and now you’re unable to pull the plug.

Define your word counts or per-piece counts. While writing the company’s corporate profiles or two ghostwritten articles may seem like fairly specific jobs, how many “executives” are they expecting to pile on to your profile heap, and are those articles in your mind 1,500 words and in their minds 30-page white papers? 

What goes into your contracts these days?

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  • Devon Ellington November 20, 2012 at 1:43 pm

    All important.

    Also, I find it important to include late fee clauses — and that the fees will accrue if it continues to lapse.

    I also now bill for phone class, X amount peer 15 minute increment (like a lawyer) to be billed each Friday and paid the following week.

    When they have to pay for wasting your time on the phone, they waste a lot less of it. This replaces my "no phone calls" clause, although I still have in that my phone is OFF most of the day, although I will check in for messages, and set a phone date at the above rate.

  • Kimberly Ben November 20, 2012 at 2:55 pm

    A writer friend and I disagree over the importance of spelling out terms in contracts. She no longer sends clients a contract hard copy because she says email confirmation is a legal verification and good enough without too much complication. I still send each client I work with a written contract the clearly spell out my terms of service. I know a few writers who now rely completely on email confirmations when kicking off a new project, but I just can't do it.

    Because of a previous post on your blog, I've added a "No third party clause."

  • Lori November 20, 2012 at 2:59 pm

    Devon, I have a client right now who's "telling" me there won't be late fees paid. Considering how late this client is on payment, that's ironic that there's the assumption that I'll accept that. I have the collection agency ready to go — just keep pressing your luck, client.

    Kim, you're definitely doing the right thing for exactly the right reasons. Sometimes they just don't pay or decide "I didn't use it, therefore…"

    Nonsense. I still had to do the work.

  • EP November 22, 2012 at 6:22 pm

    Although I can understand your hesitance about relying completely on email confirmations when it comes to contracts, I just kind of slipped into using emails for this because of the convenience and, well, I've been lucky so far. Knock on wood. If it were a "big" contract (everybody defines this differently), though, I'm not so sure what I would do.

  • Lori November 23, 2012 at 12:48 pm

    EP, it's something that's easy to slip into, frankly. I've done it myself. Luckily, when the "stuff" has hit the fan, though, a contract was in place. Once or twice, though, there hasn't been one when I needed it and I had to take the hit.

    For most things with clients you've known forever, I'd say email is fine. Where it becomes dodgy is when it's a new client and they decide to change the rules.

  • rose taylor November 26, 2012 at 6:03 am

    I know a few writers who now rely completely on email confirmations when kicking off a new project, but I just can't do it.
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  • AnnaLisa December 5, 2012 at 1:28 pm

    Great discussion–agree with everyone above. I've never had a third party clause, but given what you've said here AND a minor situation of my own about a year ago that easily could have snowballed into a really big deal–all because of a (nit-picky yet woefully ill-informed) third party's involvement–I will consider it seriously with the next revision. It never occurred to me that the right contract tweak could have prevented it.

    The timeline and client responsibilities part is so important. I write or ghost occasionally but primarily do editing. I had an editing client a couple years ago that kept asking for me to rewrite X, Y, Z but repeatedly failed to delivery her first drafts. After three months of sporadic or dead-end communication and precious little progress, I gently "divorced" her and added a clause that says if a client doesn't respond to email or provide materials in a reasonable amount of time that I define, it's over.

    My contract also includes a confidentiality clause. That satisfies a legitimate client need and eliminates the necessity for exchanging a separate contract to protect the client's interests. I also state clearly that I am an independent contractor, not an employee, and therefore not bound to the client's office hours, procedures, etc. I specify that I don't do phone calls at all without an appointment and prefer email for most communication.

    My contract has gotten kind of long, but it does what it needs to do!